Article excerpt

On November 1, 2001, President George W. Bush issued Executive Order 13233, which instituted new barriers to obtaining access to former presidents' White House materials. If left to stand, the executive order would effectively nullify the 1978 Presidential Records Act (PRA) by allowing former presidents, vice presidents, and their heirs to assert independently based claims of executive privilege to control access to White House materials seemingly in perpetuity. The Bush order is similar to a directive issued by the Justice Department under the Reagan administration on behalf of former president Nixon to give him veto power over the release of his alleged privileged White House materials. Both the Bush and Reagan directives are based on virtually identical but highly selective interpretations of the 1977 Supreme Court ruling of Nixon v. Administrator of General Services, in which the former president lost his bid to reclaim ownership over his presidential tapes and records. What is remarkable is that despite his Supreme Court defeat, both the Reagan and George W. Bush administrations resurrected Nixon's archaic, expansive, and rejected claims of the presidential prerogative to justify their own legal and regulatory schemes to subvert the PRA, an act of Congress. In both cases, these attempts appeared to stem from a president's concern over his historical legacy, efforts to reassert executive authority, and an ongoing struggle over the separation of powers during a period of heightened international tension and more restrictive provisions governing public access to government information.

The Bush order is especially notable in containing several curiosities, which appear to stem from a Nixonion view of executive privilege. The order, for example, provides that an incumbent president will defer to a former president's privilege claim barring access to his White House materials unless compelling circumstances favor disclosure. Even if the incumbent president discovers compelling circumstances and disagrees with a former president's privilege claim, the order nevertheless mandates that the National Archives wholly respect the dictates of the former president and keep the materials sealed in contravention of the terms of the PRA. This provision thus provides that sitting presidents abdicate their constitutional responsibilities to uphold the law and to govern the activities and operations of executive branch employees and agencies. In addition, if either a former or sitting president objects to releasing the records, the individual requesting the documents must then bring a court action, a provision that precisely comports with Nixon's arguments in Nixon v. Freeman, in which the former president claimed that a researcher had to show a "particularized need" for access to his Oval Office materials. The order also appears to allow for the creation of a private family dynasty of overseers or censors concerning the history of the U.S. government by extending these same extraordinary executive privileges to former and sitting vice presidents and the designated representatives, relatives, or heirs of presidents and vice presidents.

These novel peculiarities, however contrary to the provisions of the PRA and prior court rulings, are perhaps comprehensible when considering the Bush administration's Nixonesque understanding of executive privilege and the intellectual and judicial history behind the order. It is apparent that former president Nixon's arguments on behalf of executive privilege have resonated considerably within succeeding Republican administrations, starting with the Reagan White House, with the aim of strengthening executive authority and reasserting an absolute and unreviewable controlling interest in their White House materials. It also seems apparent that Republican administrations have never accepted either the legitimacy of the Burger Court's majority opinion in Nixon v. …

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